1. The increased number of Central Americans petitioning for asylum in the United States is not because more people are “exploiting” the system via “loopholes,” but because many have credible claims.
The families, women and unaccompanied children are fleeing for a reason (see this short video series featuring Central American children who fled their home countries because of threats to their lives). The countries of El Salvador, Guatemala, and Honduras are facing exceptional levels of violent crime, with El Salvador and Honduras ranking among the top five most violent countries in the world, including nations at war. In 2016, United States Citizenship and Immigration Services (USCIS) found that, out of nearly 93,000 cases, 78 percent of those citing a “credible fear” of persecution in their country of origin had a significant possibility of having legitimate claims, and were thereafter assigned a date for an asylum hearing in a U.S. immigration court.
There is no recorded evidence by any U.S. federal agency showing that the increased number of people petitioning for asylum in the United States is due to more people lying about the dangers they face back in their country of origin. However, the increased number of people petitioning for asylum in the United States does reflect global trends: the United Nations High Commissioner for Refugees (UNHCR) says there has never been a higher number of forcibly displaced people worldwide. Mexico alone saw a 66 percent increase in asylum claims in 2017 compared to 2016, in part due to the number of people fleeing violence in Central America. U.S. Citizenship and Immigration Services (USCIS) reports that more individuals from Guatemala, Honduras, and El Salvador sought affirmative asylum in the United States between 2013 to 2015 than in the previous 15 years combined.
2. Under U.S. law, unaccompanied children fleeing violence in Central America who arrive at the U.S.-Mexico border seeking protection should be placed with a family member or another sponsor within the United States.
Under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), unaccompanied children who arrive at the U.S. and who are from non-contiguous countries are processed by U.S. Customs and Border Protection (CBP). Afterward, they are sent to the Office of Refugee Resettlement (ORR), a branch of the Department of Health and Human Services. Once there, these children receive care and some legal advice, and are later placed with a family member or sponsor already in the United States, with whom they live while awaiting their immigration hearing. The Trump administration has frequently described this process as a “loophole” as though it were an unintended consequence of the law. It is not: it is precisely what the law stipulates should happen.
Currently, the 2008 TVPRA provides critical protections for Central American children. Any attempt to remove these protections means depriving these children of their right to be properly screened to see if they qualify for U.S. protections. As WOLA has highlighted, the cost of failing to provide due process is evidenced in how CBP handles unaccompanied minors from Mexico (a contiguous country) who are frequently deported from the United States without a fair hearing or involvement of ORR. Other research by WOLA shows that CBP is poorly equipped to become the agency responsible for determining whether children from Central America face credible fear for their lives and thus qualify for U.S. protection. As the Government Accountability Office (GAO) found in a July 2015 report, when screening unaccompanied children at the border, CBP agents “made inconsistent screening decisions” and “had varying levels of awareness about how they were to assess certain screening criteria.”
3. Those who are granted asylum in the United States cannot petition to bring an unlimited number of relatives into the country.
Immigrants cannot sponsor an unlimited number of relatives to enter the United States. Those granted refugee or asylee status can only petition to bring their spouse, or unmarried children who were under 21 when they first applied for refugee/asylum status. While visas are always available for immediate family members of U.S. citizens (including spouses, unmarried children who are under 21, and parents), other categories of relatives may wait for years to have their visas processed. For example, U.S. citizens who first petitioned to bring their siblings from Mexico in 1997 had to wait 20 years before U.S. authorities would even look at the application. There are also hard limits to the annual number of visas issued to immigrant family members. For example, every year, the number of adult children (over 21) of U.S. citizens who were allowed to immigrate to the United States is capped at 23,400.
4. Petitioning for asylum in the United States is not “an easy ticket to illegal entry.”
Those who arrive at the U.S.-Mexico border and petition for asylum must first pass what’s known as a “credible fear” test, conducted by U.S. Citizenship and Immigration Services asylum officers, in order to determine whether the applicant qualifies for an asylum hearing. Far from being an “easy ticket” to life in the United States, the “credible fear” test is just the first step in a series of obstacles faced by asylum seekers.
In fact, the bar for passing the “credible fear” assessment is already quite high, even though its original intent was to demand a low threshold of evidence from applicants. All who take the “credible fear” test have their names and fingerprints vetted via a national security database, which scans records from federal, state, local, and foreign sources. Those adjudicating the “credible fear” test must also assess the asylum seeker’s credibility by considering “demeanor, candor, or responsiveness… the inherent plausibility of the applicant’s account, the consistency between the applicant’s written and oral statements… the internal consistency of each such statement, the consistency of such statements with other evidence of record, and any inaccuracies or falsehoods in such statements, or any other relevant factor.” Even after passing the credible fear review, many adult asylum applicants are held in detention while awaiting a hearing. In many cases, ICE sets unreasonably high bond rates or denies parole requests even when the established criteria are met.
Other research indicates that many migrants who have fled circumstances that warrant a credible fear test will never be given one. In a 2018 study by the Hope Border Institute, 76 percent of asylum attorneys interviewed described cases in which migrants reported being discouraged, threatened, or dissuaded from pursuing asylum. The same study found that 56 percent of attorneys reported cases of CBP officers failing to ask migrants if they are afraid to return to their homes, a question that the law requires CBP officers to ask.
5. There are a wide range of reasons why some asylum applicants may fail to appear in immigration court. This is NOT indicative of their initial claims of fleeing violence being fraudulent.
Those who pass their “credible fear” screenings, and who are found not to be a security or a flight risk, may be released from detention at the U.S.-Mexico border on the condition that they later appear in immigration court. Attorney General Jeff Sessions has argued that the fact that many fail to appear must be evidence their initial claims were fraudulent.
However, research indicates that the majority of individuals detained and then released by ICE do show up for their immigration court hearing. According to an analysis by Syracuse University’s Transactional Records Access Clearinghouse (TRAC), in 2015 the overall appearance rate of individuals, including asylum seekers, who had been released from ICE custody was 77 percent. TRAC analysis also showed while almost all families and children that had legal representation showed up for their immigration hearings, those who lacked legal aid were less likely to show up for their court date. Reports have also shown that applicants for asylum can fail to show up in court for a wide range of reasons. They may have received inadequate information from U.S. officials after being released from detention. Many asylum seekers report never receiving notice of their appointment. This is because migrants must frequently resettle within the United States in order to live with supportive networks of friends and family. Yet there are documented cases of asylum seekers who have notified immigration authorities of their change of address but never receive notice of their court date.
6. Access to legal counsel and the location of the immigration court are key factors in the outcome of asylum hearings.
Although many Central American families are fleeing similar situations, there’s a vast difference in how their cases are decided depending on the judge and the location of the court, according to an analysis of asylum decisions made by U.S. immigration judges. Whereas judges in New York grant asylum in more than 75 percent of the cases, in Atlanta almost 90 percent of asylum requests are denied. A 2015 study by Syracuse University’s TRAC also found that without legal representation, only 1.5 percent of women with children who had passed their credible fear interviews were eventually granted asylum in the United States.